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Appealing Judge’s Jury Verdict in mock-Nazi Salute Case

NOTES BY NORSE: The threat of repression at Santa Cruz City Council has been an ever present threat for the community coming there, and particularly for homeless people and homeless activists, trying to draw attention to the civil rights abuses of the police force, vigilante groups, or the city’s “clean up” crews–active in destroying homeless encampments.Over a decade ago, I was arrested for raising my arm in a silent brief “don’t act like fascists” mock-Nazi salute. No charges were filed, but I was excluded from Council and held in jail. I sued the Mayors who falsely arrested me.

Things haven’t gone so well in the trial, but the impact of the entire action has been to establish that violating a City Council “rule” is not a “disruption” punishable by a criminal charge or arrest.

This is the latest update–with attorneys appealing the latest decision exonerating the Mayors. We are seeking a retrial.

The False Arrest civil trial of two former Santa Cruz Mayors, Tim Fitzmaurice and Christopher Krohn, ended in verdicts in their favor late last year in a federal courtroom in San Jose. My attorneys–David Beauvais and Kate Wells–have now moved for a new trial, claiming the jury verdict should be thrown out because it is against the overwhelming weight of the evidence and for other reasons. City attorney Kovocevitch disputes this in a shorter brief. The case will be heard Friday June 7th 9 PM in Federal Court. For those following the case , here is the transcript of last year’s trial and the motions pro and con for a new trial.

The Sentinel made brief mention of the upcoming hearing at http://www.santacruzsentinel.com/localnews/ci_23380861/coast-lines-june-4-2013-meeting-tackles-santa?.My attorneys (who are doing this pro bono) are looking forward to this hearing, considering the city attorney’s arguments very weak. I’m less optimistic about the outcome of this hearing. The judge hearing it, Robert Whyte, twice prevented a jury trial and sent the case creeping through the courts for ten years. More accurately it bounced back and forth, and looks like that may continue. If this motion for retrial fails, the attorneys say they are likely to appeal.

However an 11-member panel of the 9th Circuit Court of Appeals in an unusual en banc panel reaffirmed that arrests cannot be legitimately made for anything other than actual disruption–not the appearance of disruption, threatened disruption, virtual disruption, potential disruption, etc. That is exactly what happened here, and what is threatened frequently by mayors since.

I credit the attorneys’ willingness to pursue the appeals against the mayors with creating a significant deterrent here. I suppose it’s really hard to judge, but I think my willingness and that of others to ignore City Council’s “thou shalt not criticize in gestures we don’t like” policy has slowed the tide of repression. Though on it marches, for sure.

The rules still state ” Any person making personal, impertinent, or slanderous remarks, or becoming boisterous or otherwise disrupting the Council meeting shall be barred by the presiding officer from further attendance at said meeting unless permission for continued attendance is granted by a majority vote of the Council….Every member of the public and every Councilmember desiring to speak shall address the presiding officer… avoiding all indecorous language and references to personalities…Upon instructions of the presiding officer it shall be the duty of the sergeant-at-arms or any police officer present to eject from the Council Chambers any person in the audience who uses boisterous or profane language, or language tending to bring the Council or any Councilmember into contempt…”

On the other hand, the mere making of “personal, impertinent, slanderous, boisterous, indecorous, profane, or contemptuous” language is no cause for ejection unless an actual disruption is caused. This was significantly upheld when the case was forwarded to trial by the en banc panel of the 9th Circuit. And it is also the fundamental basis for appealing the jury verdict last year and demanding a new trial.

On the ground, this means–express yourself, don’t be intimidated, and support the First Amendment in City Council chambers, whether it be for strong speakers on the left or the right.

The court hearing yesterday in San Jose was not a happy one.Though the decision won’t be final until it appears in writing, Judge Ronald Whyte’s tentative indication was to let the jury verdict stand and not grant a retrial, rejecting our argument that the verdict went against the overwhelming weight of the evidence.

To justify this, Whyte seemed to be giving credence to City Attorney Kovocevitch’s argument that it wasn’t my mock-Nazi salute that was “disruptive” but my refusal to leave after being told to do so by then-mayor Krohn after the demand from former Mayor Fitzmaurice.

My attorneys argued that Krohn didn’t even see the mock-Nazi salute and so made a false arrest when I quietly sat down and refued to leave. Kovocevitch replied that it was the “totality of circumstances” that was “disruptive”. Whyte is likely to agree with Kovocevitch that my approaching the microphone was “disruptive”. This was my subsequent attempt to get the Council to vote to overturn the Krohn/Fitzmaurice demand that I leave as Fitzmaurice demanded I be ejected.

A subsequent arrest by then-Mayor Kennedy for a silent parade (when he had moved Oral Communications to the end of the meeting to cut off speakers on the homeless issues) and a whisper was characterized by Kovocevitch as a “disruptive” failure to leave. (I actually left but came back, and Kennedy then disrupted his own meeting by demanding I leave).

It won’t be clear until Whyte issues what will presumably be a written opinion.

That opinion will not alter the 9th Circuit’s historic decision earlier in my case upholding the right of the public to essentially be rude, indecorous, profane, personal, scandalous, or impertinent—that is, speak in a manner which may “offend” the City Council members, provided it doesn’t actually disrupt the meeting.

To reiterate–this means that a violation of Council rules per see–unless it materially disrupts the meeting–is not a cause for exclusion, though a Mayor or Councilmember may chastise you, direct you, denounce you, etc. (for instance, for turning to the audience to speak and giving the Council your backside to view).

Whether Mayor Bryant will ignore the 9th Circuit’s ruling and attempt to crack down further on dissenters remains to be seen. She seems amenable to unconstitutional laws against the homeless on medians and in the parks, the levee, and throughout the city in areas Parks and Recs controls (See “Anti-Homeless Laws at Santa Cruz City Council” at http://www.indybay.org/newsitems/2013/05/26/18737433.php ). Whether this would also translate to more direct repression at City Council is unclear.

So far, as far as I know, Bryant’s had no one arrested. But then she neither needs to nor does she seem at odds fundamentally with the TBSC crowd that showed up to demand they be heard and responded to (not a bad thing in the abstract). She seems to have adopted their anti-homeless agenda and is unusually tolerant of their tumultuous appearances at Council, even canceling a council meeting to have a festive meeting with one of their protests in the Council courtyard several months ago.

Bryant also continues to hold up on revealing her last year’s emails (the ones she’s finally released contain significant omissions). While it is true, she improperly silenced me from speaking in what I believed was a violation of the Brown Act last meeting (see “Mayor Cuts Off Comment in Consent Agenda Crackdown” at http://www.indybay.org/newsitems/2013/06/01/18737797.php), she has not actually threatened me with arrest or removal from the chambers as far as I remember.

I will post the judge’s final decision once I get it, but it is almost surely going to be a refusal to order a new trial. This decision is likely to be appealed, if only because the attorneys have already spent 11 years on the issue.

…If the chair of a public meeting illegally tells someone to leave, then it is ILLEGAL to arrest him if he protests.Judge Whyte turned down our appeal of the jury verdict. We argued that the verdict should be thrown out on the grounds of failing to follow jury instructions and total lack of any defense evidence.

In response we have appealed Whyte’s (and the jury’s) decision to a 3-judge panel. I’ll probably be posting the briefs when they’re filed.

In my view, chances for any success in this appeal are dimmer than ever. However, as mentioned before, the fruits of this struggle have been to clarify that a simple refusal to follow dictated rules cannot be the basis for claiming a City Council disruption–which means that Council hasn’t arrested anyone recently (nor have folks stood up to Council’s authoritarian edicts or repressive process–it is true).

Judge Whyte ruled against us on all counts. The attorneys are appealing to the 9th Circuit Court. I believe the chances for a reversal are slim to none, but Whyte’s decision seems to show the kind of authoritarian bias that he initially had a decade ago when he summarily dismissed this case (twice) and had to be reversed by the 9th and then by an en banc panel above the 9th.It is conceivable that a panel will again reverse, given the rather clear video of this “disruption” which meets none of the categories that Whyte mentions (“speaking too long, being unduly repetitious, extended discussion of irrelevances”). I did respond to Fitzmaurice’s outrageous demand that I be ordered to leave a public meeting for a brief silent expression of dissent. The interchange took 5-10 seconds.

Krohn’s willingness to order other people out of the meeting (the previous speaker, Susan Zeman for instance, who simply wanted the time the speak her 3 minutes at Oral Communications) indicates to me that he was of that frame of mind, whatever my reaction to Fitzmaurice’s “point of order” if I declined to go.

The City Attorney defending the two Mayors made a big to-do in court–that I “charged” the microphone, that I interrupted Fitzmaurice’s point of order–and that was the “disruption”. This, and not the salute, was the hook on which the defense, Judge Whyte, and perhaps the Jury hung its exoneration of Krohn and Fitzmaurice. In fact, had I said absolutely nothing and sat down, it seems clear that Krohn would have ordered me to leave and then (so advised by Kennedy), recessed the meeting, and had me arrested. He was pretty much under the influence of the rest of the Council, though I think he regretted it later (but has never publicly said so).

My statement at the time (which can be heard on the video) was “Under the Brown Act, I have the right to participate here. I intend to remain. No disrespect intended.” I then sat down.